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Correspondence 
Conf  Pam  12mo  #82 

0^031763/ 


CORRESPONDENCE 


BETWEEN 


THE  PRESIDENT 


AND   THE 


GOVERNOR  OF  GEORGIA, 


RELATIVE  TO  THE  LAW  USUALLY  KNOWN  AS  THE 


CONSCRIPTION  LAW. 


RICHMOND: 

RITCHIE  Xt  DUNNAVANT,  PRINTERS- 
1862 


KB* 

IV 

/xroo 


CORRESPONDENCE. 


EXECUTIVE   DEPARTMENT, 

Milledgeville,  Ga.,  May  8,  1862. 
Dear  Sik  : 

I  have  the  honor  to  acknowledge  the  receipt 
of  your  favor  of  the  28th  ult.,  in  reply  to  my  letter  to  you  upon  the 
subject  of  the  Conscription  Act.  I  should  not  trouble  you  with  a 
reply,  were  it  not  that  principles  are  involved  of  the  most  vital 
character,  upon  the  maintenance  of  which,  in  my  opinion,  depend 
not  only  the  rights  and  the  sovereignty  of  the  States,  but  the  very 
existence  of  State  Government. 

While  I  am  always  happy  as  an  individual  to  render  you  any 
assistance  in  my  power,  in  the  discharge  of  the  laborious  and  re- 
sponsible duties  assigned  you,  and  while  I  am  satisfied  you  will 
bear  testimony  that  I  have  never,  as  the  Executive  of  this  State, 
failed  in  a  single  instance  to  furnish  all  the  men,  and  more  than 
you  have  called  for,  and  to  assist  you  with  all  the  other  means  at 
my  command,  I  cannot  consent  to  commit  the  State  to  a  policy 
which  is  in  my  judgment  subversive  of  her  sovereignty,  and  at 
war  with  all  the  principles  for  the  support  of  which  Georgia 
entered  into  this  revolution. 

It  may  be  said  that  it  is  no  time  to  discuss  constitutional  ques- 
tions in  the  midst  of  revolution,  and  that  state  rights  and  state 
sovereignty  must  yield  for  a  time  to  the  higher  law  of  necessity. 
If  this  is  a  safe  principle  of  action,  it  cannot  certainly  apply  till 
the  necessity  is  shown  to  exist ;  and  I  apprehend  it  would  be  a 
dangerous  policy  to  adopt,  were  we  to  admit  that  those  who  are 
to  exercise  the  power  of  setting  aside  the  Constitution,  are  to  be 
the  judges  of  the  necessity  for  so  doing.    But  did  the  necessity 


P 72 3 2 3 


exist  in  this  case  ?  The  Conscription  Act  cannot  aid  the  Govern- 
ment in  increasing;  its  supply  of  arms  or  prcmrions,  but  can  only 
enable  it  to  call  a  larger  number  of  men  into  the  field.  The  diffi- 
culty has  never  been  to  get  men.  The  States  have  already  fur- 
nished the  Government  more  than  it  can  arm,  and  have  from  their 
own  means  armed  and  equipped  very  large  numbers  for  it. 
Georgia  has  not  only  furnished  more  than  you  have  asked,  and 
armed  and  equipped,  from  her  own  treasury,  a  large  proportion 
of  those  she  has  sent  to  the  field,  but  she  stood  ready  to  furnish 
promptly  her  quota  (organized  as  the  Constitution  provides)  of 
any  additional  number  called  for  by  the  President. 

I  beg  leave  again  to  invite  your  attention  to  the  constitutional 
question  involved.  You  say  in  your  letter,  that  the  constitution- 
ality of  the  act  is  clearly  not  derivable  from  the  power  to  call  out 
the  militia,  but  from  that  to  raise  armies.  Let  us  examine  this 
for  a  moment.  The  8th  section  of  the  1st  article  of  the  Consti- 
tution defines  the  powers  of  Congress.  The  12th  paragraph  of 
that  section  declares,  that  Congress  "shall  have  power  to  raise 
and  support  armies."  Paragraph  15  gives  Congress  power  to 
provide  for  calling  forth  the  militia  to  execute  the  laws  of  the 
Confederate  States,  suppress  insurrections,  and  repel  invasions. 
Paragraph  10  gives  Congress  power  to  provide  for  organizing, 
arming  and  disciplining  the  militia,  and  for  governing  such  part 
of  them  as  may  be  employed  in  the  service  of  the  Confederate 
States,  reserving  to  the  'States  respectively  the  appointment  of  the 
officers,  and  the  authority  of  training  the  militia,  according  to  the 
discipline  prescribed  by  Congress. 

These  grants  of  power  all  relate  to  the  same  subject  matter, 
and  are  all  contained  in  the  same  section  of  the  Constitution,  and 
by  a  well  known  rule  of  construction,  must  be  taken  as  a  whole, 
and  construed  together. 

It  would  seem  quite  clear,  that  by  the  grant  of  power  to  Con- 
gress to  raise  and  support  armies,  without  qualification,  th« 
framers  of  the  Constitution  intended  the  regular  armies  of  the 
Confederacy,  and  not  armies  composed  of  the  whole  militia  of 
all  the  States.     If  all  the  power  given  in  the  three  paragraphs 


above  quoted,  is  in  fact  embraced  in  the  first,  in  the  general  words 
to  raise  armies,  then  the  other  two  paragraphs  are  mere  sur- 
plusage, and  the  framers  of  the  Constitution  were  guilty  of  the 
folly  of  incorporating  into  the  instrument  unmeaning  phrases. 
When  the  States,  by  the  16th  paragraph,  expressly  and  carefully 
reserved  to  themselves  the  right  to  appoint  the  officers  of  the 
militia,  when  employed  in  the  service  of  the  Confederate  States, 
it  was  certainly  never  contemplated  that  Congress  had  power, 
should  it  become  necessary  to  call  the  whole  militia  of  the  States 
into  the  service  of  the  Confederacy,  to  direct  that  the  President 
should  appoint  (commission)  all  the  officers  of  the  militia  thus 
called  into  service,  under  the  general  language  contained  in  the 
previous  grant  of  power  to  raise  armies.  If  this  can  be  done, 
the  very  object  of  the  States  in  reserving  the  power  of  appointing 
the  officers,  is  defeated,  and  that  portion  of  the  Constitution  is 
noi;  only  a  nullity,  but  the  whole  military  power  of  the  States,  and 
the  entire  control  of  the  militia,  with  the  appointment  of  the 
officers,  is  vested  in  the  Confederate  Government,  whenever  it 
chooses  to  call  its  own  action  "raising  an  army,"  and  not  "  calling 
forth  the  militia."  Is  it  fair  to  conclude  that  the  States  intended 
that  these  reserved  powers  should  be  defeated  in  a  matter  so  vital 
to  constitutional  liberty,  by  a  mere  change  in  the  use  of  terms  to 
designate  the  act  ?  Congress  shall  have  power  to  raise  armies. 
How  shall  it  be  done  ?  The  answer  is  clear.  In  conformity  to 
the  provisions  of  the  Constitution,  which  expressly  provides,  that 
when  the  militia  of  the  States  are  called  forth  to  repel  invasion, 
and  employed  in  the  service  of  the  Confederate  States  (which  is 
now  the  case),  the  States  shall  appoint  the  officers.  If  this  is 
done,  the  army  is  raised  as  directed  by  the  Constitution,  and  the 
reserved  rights  of  the  States  are  respected ;  but  if  the  officers  of 
the  militia,  when  called  forth,  are  appointed  by  the  I  resident,  the 
army  composed  of  the  militia  is  not  raised  as  directed  by  the 
Constitution,  and  the  reserved  rights  of  the  States  are  disregarded. 
The  fathers  of  the  Republic  in  1787  showed  the  utmost  solicitude 
on  this  very  point.  In  the  discussion  in  the  Convention  on  the 
adoption  of  this   paragraph  in  the  Constitution  of  the  United 


P?9Q9Q 


States,  which  we  have  copied  aud  adopted  without  alteration, 
Mr.  Ellsworth  said,  "  The  whole  authority  over  the  militia  ought 
by  no  means  to  be  taken  away  from  the  States,  whose  consequence 
would  pine  away  to  nothing  after  such  a  sacrifice  of  power."  In 
explanation  of  the  power  which  the  committee,  who  reported  this 
paragraph  to  the  Convention,  intended  by  it  to  delegate  to  the 
General  Government,  when  the  militia  should  be  employed  in  the 
service  of  that  government,  Mr.  King,  a  member  of  the  com- 
mittee, said,  "  By  organizing,  the  committee  meant  proportioning 
the  officers  and  men  ;  by  arming,  the  kind,  size  and  calibre  of 
arms ;  by  disciplining,  prescribing  the  manual  exercise,  evolu- 
tions," &c. 

Mr.  Gerry  objected  to  the  delegation  of  the  power,  even  with 
this  explanation,  and  said,  "  This  power  in  the  United  States,  as 
explained,  is  making  the  States  drill  sergeants.  He  had  as  lief 
let  the  citizens  of  Massachusetts  be  disarmed,  as  to  take  the  com- 
mand from  the  States,  and  subject  them  to  the  General  Legisla- 
ture." 

Mr.  Madison  observed,  that  "  arming,  as  explained,  did  not 
extend  to  furnishing  arms,  nor  the  term  disciplining,  to  penalties 
and  courts  martial  for  enforcing  them." 

After  the  adoption  by  the  Convention  of  the  first  part  of  the 
clause,  Mr.  Madison  moved  to  amend  the  next  part  of  it,  so  as  to 
read  "  reserving  to  the  States  respectively  the  appointment  of  the 
officers,  under  the  rank  of  general  officers."  Mr.  Sherman  con- 
sidered this  as  absolutely  inadmissible.  He  said,  that  "if  the 
people  should  be  so  far  asleep  as  to  allow  the  most  influential 
officers  of  the  militia  to  be  appointed  by  the  General  Govern- 
ment, every  man  of  discernment  would  rouse  them  by  sounding 
the  alarm  to  them."  Upon  Mr.  Madison's  proposition  Mr.  Gerry 
said,  "  Let  us  at  once  destroy  the  State  Governments,  have  an 
Executive  for  life,  or  hereditary,  and  a  proper  Senate,  and  then 
there  would  be  some  consistency  in  giving  full  powers  to  the 
General  Government;  but  as  the  States  are  not  to  be  abolished, 
he  wondered  at  the  attempts  that  were  made  to  give  powers 
inconsistent  with  their  existeuce.  He  warned  the  Convention 
against  pushing  the  experiment  too  far." 


Mr.  Madison's  amendment  to  add  to  the  clause  the  words 
41  under  rank  of  general  officers,'''  was  voted  down  by  a  majority 
of  efght  States  against  three,  according  to  the  "Madison  Papers," 
from  which  the  above  extracts  are  taken ;  and  by  nine  States 
against  two,  according  to  the  printed  journals  of  the  Convention. 
The  reservation  in  the  form  in  which  it  now  stands  in  the  Consti- 
tution, "  reserving-  to  the  States  the  appointment  of  the  officers," 
when  the  militia  are  employed  in  the  service  of  the  Confederacy, 
as  well  the  general  officers  as  those  under  that  grade,  was  adopted 
unanimously  by  the  Convention. 

At  the  expense  of  wearying  your  patience,  I  have  been  thus 
careful  in  tracing  the  history  of  this  clause  of  the  Constitution,  to 
show  that  it  was  the  clear  understanding  of  those  who  originated 
this  part  of  the  fundamental  law,  that  the  States  should  retain 
their  power  over  their  militia,  even  while  in  the  service  of  the 
Confederacy,  by  retaining  the  appointment  of  all  the  officers. 

In  practice,  the  Government  of  the  United  States,  among  other 
numerous  encroachments  of  power,  had  usurped  to  itself  the 
power,  which  the  Convention,  after  mature  deliberation,  had  ex- 
pressly denied  to  it,  to  wit,  the  power  of  appointing  the  general 
officers  of  the  militia,  when  employed  in  the  service  of  the  General 
Government. 

But  even  that  Government  had  never  attempted  to  go  to  the 
extent  of  usurping  the  power  to  appoint  the  field  and  company 
officers.  If  the  framers  of  the  Constitution  were  startled  at  the 
idea  of  giving  the  appointment  of  the  general  officers  to  the 
General  Government,  and  promptly  rejected  it,  how  would  they 
have  met  a  proposition  to  give  the  appointment  of  all  the  officers, 
down  to  the  lowest  lieutenant,  to  it  ? 

But  you  say,  "  with  regard  to  the  mode  of  officering  the  troops 
now  called  into  the  service  of  the  Confederacy,  the  intention  of 
Congress  is  to  be  learned  from  its  acts;  and  from  the  terms  em- 
ployed, it  would  seem  that  the  policy  of  election  by  the  troops 
themselves  is  adopted  by  Congress." 

I  confess  I  had  not  so  understood  it,  without  very  essential 
qualifications.  It  is  true,  the  twelve  months  men,  who  re-enlist, 
have  a  right  within  forty  days  to  reorganize  and  elect  their  officers. 


8 

But  if  I  understand  the  act,  judging  from  the  terms  used,  all 
vacancies  which  occur  in  the  old  regiments,  are  to  be  filled,  not  by 
election,  but  by  the  President,  by  promotion,  down  to  the  lowest 
commissioned  officer,  whose  vacancy  alone  is  filled  by  election  : 
and  even  this  rule  of  promotion  may  be  set  aside  by  the  President 
at  any  time,  under  circumstances  mentioned  in  the  act,  and  he 
may  appoint  any  one  he  pleases  to  fill  the  vacancy,  if  in  his 
opinion  the  person  selected  is  distinguished  for  skill  or  valor;  and 
the  commission  in  either  and  all  the  cases  mentioned  must  be 
issued  by  the  President. 

Quite  a  number  of  Georgia  regiments  are  in  for  the  war,  whose 
officers  hold  commissions  from  the  Executive  of  the  State ;  but 
even  in  these  regiments,  under  the  act,  every  person  appointed  to 
fill  any  vacancy  which  may  hereafter  occur,  it  would  seem,  must 
hold  his  commission  not  from  the  State,  but  from  the  President. 

But  admit  that  Congress,  by  its  acts,  intended  to  give  the  troops 
in  every  case  the  right  to  elect  officers  (which  has  not  been  the 
established  practice,  as  you  have  commissioned  many  persons  to 
command  as  field  officers,  without  election),  this  does  not  relieve 
the  acts  of  Congress  from  the  charge  of  violation  of  the  Constitu- 
tion. The  question  is  not  as  to  the  mode  of  selecting  the  person 
who  is  to  have  the  commission,  but  as  to  the  Government  which 
has,  under  the  Constitution,  the  right  to  issue  the  commission. 
The  States,  in  the  exercise  of  their  reserved  power  to  appoint  the 
officers,  may  select  them  by  election,  or  may  permit  the  Executive 
to  seleet  them ;  but  the  appointment  rests  upon  the  commission, 
as  there  is  no  complete  appointment  till  the  commission  is  issued; 
and  therefore  the  Government  that  issues  the  commission,  exer- 
cises the  appointing  power,  and  controls  the  appointment. 

I  am  not,  however,  discussing  the  intention  of  Congress,  in  the 
assumption  of  this  power,  but  only  the  question  of  itB  power  :  and 
whatever  may  have  been  its  intention,  I  maintain  that  it  has  trans- 
cended its  constitutional  powers,  and  has  placed  in  the  hands  of 
the  Executive  of  the  Confederacy  that  which  the  States  have  ex- 
pressly and  carefully  denied  to  Congress,  and  reserved  to  them- 
selves, 


But  you  may  ask,  why  hold  the  Executive  responsible  for  the 
unconstitutional  action  of  Congress  ?  I  would  not  of  course  insist 
on  this  any  further  than  the  action  of  Congress  has  been  sane* 
Honed  by  the  Executive,  and  acted  upon  by  him. 

Feeling-  satisfied  that  the  Conscription  Act,  and  snch  other  acts 
of  Congress  as  authorize  the  President  to  appoint  or  commission 
the  officers  of  the  militia  of  the  State,  when  employed  in  the  ser- 
vice of  the  Confederate  States,  "to  repel  invasion,"  are  in  .palpa- 
ble violation  of  the  Constitution,  I  can  consent  to  do  no  act  which 
commits  Georgia  to  willing  acquiescence  in  their  binding  force 
upon  her  people.  I  cannot  therefore  consent  to  have  any  thing  to 
do  with  the  enrollment  of  the  conscripts  in  this  State;  nor  can  I 
permit  any  commissioned  officer  of  the  militia  to  be  enrolled,  who 
is  necessary  to  enable  the  State  to  exercise  her  reserved  right  of 
training  her  militia,  according  to  the  discipline  prescribed  by 
Congress,  at  a  time,  when  to  prevent  troubles  with  her  slaves,  a 
strict  military  police  is  absolutely  necessary,  to  the  safety  of  her 
people.  Nor  can  I  permit  any  other  officer,  civil  or  military,  who 
is  necessary  to  the  maintenance  of  the  State  Government,  to  be 
carried  out  of  the  State  as  a  conscript. 

Should  you  at  any  time  need  additional  troops  from  Georgia  to 
fill  up  her  just  quota,  in  proportion  to  the  number  furnished  by 
the  other  States,  you  have  only  to  call  on  the  Executive  for  the 
number  required  to  be  organized  and  officered  as  the  Constitution 
directs,  and  your  call  will,  as  it  ever  has  done,  meet  a  prompt  re- 
sponse from  her  noble  and  patriotic  people,  who,  while  they  will 
watch  with  a  jealous  eye,  even  in  the  midst  of  revolution,  every 
attempt  to  undermine  their  constitutional  rights,  will  never  be 
content  to  be  behind  the  foremost  in  the  discharge  of  their  whole 
duty. 

I  am,  with  great  respect, 

Your  obedient  servant, 

JOSEPH  E.  BROWN. 
His  Excellency  Jefferson  Davis. 
1* 


1L 


EXECUTIVE  DEPARTMENT, 
Richmond,  29th  May  1862. 
Dear  Sir  : 

I  received  your  letter  of  the  8th  hist,  in  due 
course,  but  the  importance  of  the  subject  embraced  in  it  required 
careful  consideration ;  and -this,  together  with  other  pressing  du~ 
tic--,  lias  caused  delay  in  my  reply. 

The  constitutional  question  discussed  by  you  in  relation  to  the 
Conscription  Law,  had  been  duly  weighed  before  I  recommended 
to  Congress  the  passage  of  such  a  law :  it  was  fully  debated  in 
both  houses ;  and  your  letter  has  not  only  been  submitted  to  my 
Cabinet,  but  a  written  opinion  lias  been  required  from  the  Attor- 
ney General.  The  constitutionality  of  the  law  was  sustained  by 
very  large  majorities  in  both  houses.  This  decision  of  the  Con- 
gress meets  the  concurrence  not  only  of  my  own  judgment,  but  of 
every  member  of  the  Cabinet;  aud  a  copy  of  the  opinion  of  the 
Attorney  General,  herewith  enclosed,  develops  the  reasons  on 
which  his  conclusions  are  based. 

I  propose,  however,  from  my  high  respect  for  yourself,  and  for 
other  eminent  citizens,  who  entertain  opinions  similar  to  yours,  to 
set  forth,  somewhat  at  length,  my  own  views  on  the  power  of  the 
Confederate  Government  over  its  own  armies  aud  the  militia,  and 
will  endeavor  not  to  leave  without  answer  any  of  the  positions 
maintained  in  your  letter. 

The  main,  if  not  the  only  purpose  for  which  independent  States 
form  Unions  or  Confederations,  is  to  combine  the  power  of  the 
several  members  in  such  manner  as  to  form  one  united  force  in 
all  relations  with  foreign  powers,  whether  in  peace  or  in  war. 
Each  State,  amply  competent  to  administer  and  control  its  own 
domestic  government,  yet  too  feeble  successfully  to  resist  power- 
ful nations,  seeks  safety  by  uniting  with  other  States  in  like  con- 
dition, and  by  delegating  to  some  common  agent  the  combined 
strength  of  all,  in  order  to  secure  advantageous  commercial  rela- 
tions in  peace,  and  to  carry  on  hostilities  with  effect  in  war. 


12 

Now,  the  power*?  delegated  by  the  several  States  to  the  Con- 
federate Government,  which  is  their  common  agent,  are  enume- 
rated in  the  8th  section  of  the  Constitution,  each  power  being  dis- 
tinct, specific,  and  enumerated  in  paragraphs  separately  numbered. 
The  only  exception  is  the  18th  paragraph,  which,  by  its  own  terms, 
is  made  dependent  on  those  previously  enumerated,  as  follows : 
"  18.  To  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,"  &c. 

Now,  the  war  powers  granted  to  the  Congress,  are  conferred  in 
the  following  paragraphs : 

No.  1  gives  authority  to  raise  "revenue  necessary  to  pay  the 
debts,  provide  for  the  common  defence,  and  cari*y  o*i  the  govern- 
ment," &c.  : 

No.  11,  "to  declare  war,  grant  letters  of  marque  and  reprisal, 
and  make  rales  concerning  captures  on  land  and  wafer:" 

No.  12,  "  to  raise  and  support  armies  ;  but  HO  appropriation  of 
money  to  that  use  shall  be  for  a  longer  term  than  two  years :" 

No.  13,  "  to  provide  and  maintain  a  navy:" 

No.  14,  "  to  make  rules  for  the  government  and  regulation  of 
the  land  and  naval  forces ." 

It  is  impossible  to  imagine  a  more  broad,  ample  and  unqualified 
delegation  of  the  whole  war  power  of  each  State,  than  is  here 
contained,  with  the  solitary  limitation  of  the  appropriations  to 
two  years.  The  States  not  only  gave  power  to  raise  money  for 
the  common  defence;  to  declare  war;  to  raise  and  support  armies 
(in  the  plural) ;  to  provide  and  maintain  a  navy ;  to  govern  and 
regulate  both  land  and  naval  forces;  but  they  went  further,  and 
covenanted,  by  the  3d  paragraph  of  the  10th  section,  not  ltto 
engage  in  war,  unless  actually  invaded,  or  in  such  imminent  dan- 
ger as  will  not  admit  of  delay." 

I  know  of  but  two  modes  of  raising  armies  within  the  Confede- 
rate States,  viz:  voluntary  enlistment,  and  draft  or  conscription. 
I  perceive,  in  the  delegation  of  power  to  raise  armies,  no  restric- 
tion as  to  the  mode  of  procuring  troops.  I  see  nothing  which 
confines  Congress  to  one  class  of  men,  nor  any  greater  power  to 
receive  volunteers  than  conscripts  into  its  service*     I  see  no  linn- 


tation  by  which  enlistments  are  to  be  received  of  individuals  only, 
but  not  of  companies,  or  battalions,  or  squadrons,  or  regiments. 
I 'find  no  limitation  of  time  of  service,  but  only  of  duration  of 
appropriation.  I  discover  nothing  to  confine  Congress  to  waging 
war  within  the  limits  of  the  Confederacy,  nor  to  prohibit  offensive 
war.  In  a  word,  when  Congress  desires  to  raise  an  army,  and 
passes  a  law  for  that  purpose,  the  solitary  question  is  under  the 
18th  paragraph,  viz:  "Is  the  law  one  that  is  necessary  and  proper 
to  execute  the  power  to  raise  armies?" 

On  this  point  you  say,  "But  did  the  necessity  exist  in  this  case? 
The  Conscription  Act  cannot  aid  the  Government  in  increasing 
its  supply  of  arms  or  provisions,  but  can  only  enable  it  to  call  a 
larger  Dumber  of  nun  into  the  field.  The  difficulty  has  never 
been  to  get  men.  The  States  have  already  furnished  the  Govern- 
ment more  than  it  can  arm,"  <Scc. 

I  would  have  very  little  difficulty  in  establishing  to  your  entire 
satisfaction  that  the  passage  of  the  law  was  not  only  necessary, 
but  that  it  was  absolutely  indispensable:  that  numerous  regiments 
of  twelve  months  men  were  on  the  eve  of  being  disbanded,  whose 
places  could  not  be  supplied  by  raw  levies  in  the  face  of  superior 
numbers  of  the  foe,  without  entailing  the  most  disastrous  results : 
that  the  position  of  our  armies  was  so  critical  as  to  fill  the  bosoms 
of  every  patriot  with  the  liveliest  apprehension  ;  and  that  the 
provisions  of  this  law  were  effective  in  warding  off  a  pressing 
danger  :  but  I  prefer  to  answer  your  objection  on  other  and 
broader  grounds. 

I  hold,  that  when  a  specific  power  is  granted  by  the  Constitu- 
tion, like  that  now  in  question,  "to  raise  armies,"'  Congress  is  the 
judge  whether  the  law  passed  for  the  purpose  of  executing  that 
power,  is  "necessary  and  proper."  It  is  not  enough  to  say  that 
armies  might  be  raised  in  other  ways,  and  that  therefore  this 
particular  way  is  not  "necessary."  The  same  argument  might 
be  used  against  every  mode  of  raising  armies.  To  each  successive 
mode  suggested,  the  objection  would  be  that  other  modes  were 
practicable,  and  that  therefore  the  particular  mode  used  was  not 
"necessary."     The  true  and  only  test  is  to  enquire  whether  the 


14 

law  is  intended  and  calculated  to  curry  out  the  object;  whether  it 
devises  and  creates  an  instrumentality  for  executing-  the  specific 
power  granted  ;  and  if  the  answer  be  in  the  affirmative,  the  law- 
is  constitutional.  None  can  doubt  that  the  Conscription  Law 
is  calculated  and  intended  to  ''raise  armies."  It  is,  therefore, 
"necessary  and  proper"  for  the  execution  of  that  power,  and  is 
constitutional,  unless  it  comes  into  conflict  with  some  other  pro- 
vision of  our  Confederate  Compact. 

You  express  the  opinion  that  this  conflict  exists,  and  support 
your  argument  by  the  citation  of  those  clauses  which  refer  to  tbe 
militia.  There  arc  certain  provisions  not  cited  by  you,  which  arc 
not  without  influence  on  my  judgment,  and  to  which  I  call  your 
attention.  They  will  aid  in  defining-  what  is  meant  by  "militia," 
and  in  determining  the  respective  powers  of  the  States  and  the 
Confederacy  over  them. 

The  several  States  agree  "not  to  keep  troops  or  ships  of  war 
in  time  of  peace."     Art.  1,  sec.  10,  par.  3. 

They  further  stipulate,  that  "a  well  regulated  militia  being 
necessary  to  the  security  of  a  free  State,  the  right  of  the  people 
to  keep  and  bear  arms  shall  not  be  infringed."     Sec.  9,  par.  13. 

That  "no  person  shall  be  held  to  answer  for  a  capital  or  other- 
wise infamous  crime,  unless  on  a  presentment  or  indictment  of  ;i 
grand  jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or 
in  the  militia  when  in  actual  service  in  time  of  war  or  public 
danger,"  &o.     Sec.  9,  par.  16. 

What  then  are  militia?  They  can  only  be  created  by  law. 
The  arms- bearing  inhabitants  of  a  State  are  liable  to  become  its 
militia,  if  the  law  so  order ;  but  in  the  absence  of  a  law  to  that 
effect,  the  men  of  a  State  capable  of  bearing  arms  are  no  more 
militia  than  they  are  seamen. 

The  Constitution  also  tells  us  that  militia  are  not  troops,  nor 
are  they  any  part  of  the  land  or  naval  forces  ;  for  militia  exist  in 
time  of  peace,  and  the  Constitution  forbids  the  States  to  keep 
troops  in  time  of  peace:  and  they  are  expressly  distinguished  and 
placed  in  a  separate  category  from  land  or  naval  forces,  in  the 
16th  paragraph,  above  quoted:  and  the  words  land  and  naval 


15 

forces  are  shown,  by  paragraphs  12,  13  and  14,  to  mean  the  army 
and  navy  of  the  Confederate  States. 

Now,  if  militia  are  not  the  eitizens  taken  singly,  but  a  bod}" 
created  by  law;  if  the}-  arc  not  troops;  if  they  are  no  part  of  the 
army  and  navy  of  the  Confederacy — we  are  led  directly  to  the 
definition  quoted  by  the  Attorney  General,  that  militia  are  "a 
body  of  soldiers  in  a  State  enrolled  for  discipline.*'  In  other 
words,  the  term  "militia"  is  a  collective  term,  meaning  a  body 
of  men  organized,  and  cannot  be  applied  to  the  separate  indi- 
viduals who  compose  the  organization. 

The  Constitution  divides  the  whole  military  strength  of  the 
States  into  only  two  classes  of  organized  bodies — one,  the  armies 
of  the  Confederacy  :  the  other,  the  militia  of  the  States. 

In  the  delegation  of  power  to  the  Confederacy,  after  exhausting 
the  subject  of  declaring  war,  raising  and  supporting  armies,  and 
providing  a  navy,  in  relation  to  all  which  the  grant  of  authority 
to  Congress  is  exclusive,  the  Constitution  proceeds  to  deal  with 
the  other  organized  body,  the  militia,  and  instead  of  delegating 
power  to  Congress  alone,  or  reserving  it  to  the  States  alone,  the 
power  is  divided  as  follows,  viz  :    Cougress  is  to  have  power — 

"  To  provide  for  calling  forth  the  militia  to  execute  the  laws  of 
the  Confederate  States,  suppress  insurrections  and  repel  invasions." 
Sec.  8,  par.  15. 

"To  provide  for  organizing,  arming  and  disciplining  the  militia, 
and  for  governing  such  part  of  them  as  may  be  employed  in  the 
service  of  the  Confederate  States;  reserving  to  the  States  respec- 
tively the  appointment  of  officers  and  the  authority  of  training 
the  militia  according  to  the  discipline  prescribed  by  Congress." 
Par.  16. 

Congress,  then,  has  the  power  to  provide  for  organizing  the 
arms-bearing  people  of  the  States  into  militia.  Each  Stale  has 
the  power  to  officer  and  train  them  when  organized. 

Congress  may  call  forth  the  militia  to  execute  confederate  laws. 
The  Stale  has  not  surrendered  the  power  to  call  them  forth  to 
execute  Slate  laws. 

Congress  may  call  them  forth  to  repel  invasion ;  so  may  the 
State,  for  it  lias  expressly  reserved  this  right. 


Congress  may  call  them  forth  to  suppress  insurrection  ;  and  so 
may  the  State,  for  the  power  is  impliedly  reserved  of  governing 
all  the  militia  except  the  part  in  actual  service  of  the  Confederacy. 

I  confess  myself  at  a  loss  to  perceive  in  what  manner  these 
careful  and  well  defined  provisions  of  the  Constitution  regulating 
the  organization  and  government  of  the  militia,  can  be  understood 
as  applying  in  the  remotest  degree  to  the  armies  of  the  Con- 
federacy ;  nor  can  I  conceive  how  the  grant  of  exclusive  power  to 
declare  and  carry  on  war  by  armies  raised  and  supported  by  the 
Confederacy,  is  to  be  restricted  or  diminished  by  the  clauses  which 
grant  a  divided  power  over  the  militia.  On  the  contrary,  the 
delegation  of  authority  over  the  militia,  so  far  as  granted,  appears 
to  me  to  be  plainly  an  additional  enumerated  power,  intended  to 
strengthen  the  hands  of  the  Confederate  Government  in  the  dis- 
charge of  its  paramount  duty,  the  common  defence  of  the  States. 

You  state,  after  quoting  the  12th,  15th  and  16th  grants  of 
power  to  Congress,  that  "  These  grants  of  power  all  relate  to  the 
same  subject  matter,  and  are  all  contained  in  the  same  section  of 
the  Constitution,  and  by  a  well  known  rule  of  construction,  must 
be  taken  as  a  whole,  and  construed  together." 

This  argument  appears  to  me  unsound.  All  the  powers  Of 
Congress  are  enumerated  in  one  section ;  and  the  three  para- 
graphs quoted  can  no  more  control  each  other,  by  reason  of  their 
location  in  the  same  section,  than  they  can  control  any  of  the 
other  paragraphs  preceding,  intervening  or  succeeding.  So  far  as 
the  subject  matter  is  concerned,  I  have  already  endeavored  to 
show  that  the  armies  mentioned  in  the  12th  paragraph  are  a  sub- 
ject matter  as  distinct  from  the  militia  mentioned  in  the  15th  and 
16th,  as  they  are  from  the  navy  mentioned  in  the  13th.  Nothing 
can  so  mislead  as  to  construe  together  and  as  one  whole,  the  care- 
fully separated  clauses  which  define  the  different  powers  to  be 
exercised  over  distinct  subjects  by  the  Congress.  But  you  add, 
that  "by  the  grant  of  power  to  Congress  to  raise  and  support 
armies,  without  qualification,  the  framers  of  the  Constitution  in- 
tended the  regular  armies  of  the  Confederacy,  and  not  armies 
composed  of  the  whole  militia  of  all  the  States." 


17 

I  must  confess  myself  somewhat  at  a  loss  to  understand  this 
position.     If  I  am  right  that  the  militia  is  a  body  of  enrolled 
State  soldiers,  it  is  not  possible,  in  the  nature  of  things,  that  ar- 
mies raised  by  the  Confederacy  can  "be  composed  of  the  whole 
militia  of  all  the  States."     The  militia  may  be  called  forth,  in 
whole  or  in  part,  into  the  confederate  service,  but  do  not  thereby 
become  part  of  the  "armies  raised"  by  Congress.     They  remain 
militia,  and  go  home  when  the  emergency  which  provoked  their 
call  has  ceased.     Armies  raised  by  Congress  are  of  course  raised 
out  of  the  same  j)opulation  as  the  militia  organized  by  the  States ; 
and  to  deny  to  Congress  the  power  to  draft  a  citizen  into  the 
army,  or  to  receive  his  voluntary  offer  of  services  because  he  is  a 
member  of  the  State  militia,  is  to  deny  the  power  to  raise  an  army  , 
at  all ;  for  practically,  all  men  fit  for  service  in  the  army  may  be 
embraced  in  the  militia  organizations  of  the  several  States.     You 
seem,  however,  to  suggest,  rather  than  directly  to  assert,  that  the 
Conscript  Law  may  be  unconstitutional,  because  it  comprehends 
,  all  arms-bearing  men  between  18  and  35  years :  at  least,  this  is 
an  inference  which  I  draw  from  your  expression  "armies  com- 
posed of  the  whole  militia  of  all  the  States."     But  it  is  obvious, 
that  if  Congress  have  power  to  draft  into  the  armies  raised  by  it 
any  citizens  at  all  (without  regard  to  the  fact  whether  they  are  or 
not  members  of  militia  organizations),  the  power  must  be  coex- 
tensive with  the  exigencies  of  the  occasion,  or  it  becomes  illusory; 
and  the  extent  of  the  exigency  must  be  determined  by  Congress ; 
for  the  Constitution  has  left  the  power  without  any  other  check 
or  restriction  than  the  Executive  veto.     Under  ordinary  circum- 
stances, the  power  thus  delegated  to  Congress  is  scarcely  felt  by 
the  States.     At  the  present  moment,  when  our  very  existence  is 
threatened  by  armies  vastly  superior  in  numbers  to  ours,  the  ne- 
cessity for  defence  has  induced  a  call,  not  "for  the  whole  militia 
of  all  the  States,"  not  for  any  militia,  but  for  men  to  compose  ar- 
mies for  the  Confederate  States. 

Surely,  there  is  no  mystery  on  this  subject.  During  our  whole 
past  history,  as  well  as  during  our  recent  one  year's  experience  as 
a  new  Confederacy,  the  militia  "  have  been  called  forth  to  repel 


18 

invasion"  in  numerous  instances ;  and  they  never  came  otherwise 
than  as  bodies  organized  by  the  States,  with  their  company,  field 
and  general  officers ;  and  when  the  emergency  had  passed,  they 
went  home  again. 

I  cannot  perceive  how  any  one*  can  interpret  the  Conscription 
Law  as  taking  away  from  the  States  the  power  to  appoint  officers 
to  their  militia.  You  observe  on  this  point  in  your  letter,  that 
unless  your  construction  is  adopted,  "  the  very  object  of  the  States 
in  reserving  the  power  of  appointing  the  officers,  is  defeated,  and 
that  portion  of  the  Constitution  is  not  only  a  nullity,  but  the 
whole  military  power  of  the  States  and  the  entire  control  of  the 
militia,  with  the  .appointment  of  the  officers,  is  vested  in  the 
Confederate  Government,  whenever  it  chooses  to  call  its  own 
action  « raising  an  army,'  and  not  '  calling  forth  the  militia.'  " 

I  can  only  say  in  reply  to  this,  that  the  power  of  Congress  de- 
pends on  the  real  nature  of  the  act  it  proposes  to  perform,  not  on 
the  name  given  to  it ;  and  I  have  endeavored  to  show  that  its 
action  is  really  that  of  "raising  an  army,"  and  bears  no  sem-  , 
blance  to  "  calling  forth  the  militia."  I  think  I  may  safely  venture 
the  assertion  that  there  is  not  one  man  out  of  a  thousand  of  those 
who  will  do  service  under  the  Conscription  Act,  that  would  de- 
scribe himself,  while  in  the  confederate  service,  as  being  a 
militiaman:  and  if  I  am  right  in  this  assumption,  the  popular 
understanding  concurs  entirely  with  my  own  deductions  from  the 
Constitution  as  to  the  meaning  of  the  word  "militia." 

My  answer  has  grown  to  such  a  length,  that  I  must  confine 
myself  to  one  more  quotation  from  your  letter.  You  proceed, 
"Congress  shall  have  power  to  raise  armies.  How  shall  it  be 
done  ?  The  answer  is  clear.  In  conformity  to  the  provisions  of 
the  Constitution,  which  expressly  provides  that  when  the  militia 
of  the  States  are  called  forth  to  repel  invasion,  and  employed  in 
the  service  of  the  Confederate  States,  which  is  now  the  case,  the 
State  shall  appoint  the  officers." 

I  beg  you  to  observe,  that  the  answer  which  you  say  is  clear,  is 
not  an  answer  to  the  question  put.     The  question  is— How  are 


19 

armies  to  be  raised  ?  The  answer  given  is,  that  when  militia  are 
called  forth  to  repel  invasion,  the  State  shall  appoint  the  officers. 

There  seems  to  me  to  be  a  conclusive  test  on  this  whole  sub- 
ject. By  our  Constitution  Congress  may  declare  war,  offensive 
as  well  as  defensive.  It  may  acquire  territory.  Now,  suppose  that 
for  good  cause  and  to  right  unprovoked  injuries,  Congress  should 
declare  war  against  Mexico,  and  invade  Sonora.  The  militia 
could  not  be  called  forth  in  such  a  case,  the  right  to  call  it  being 
limited  "  to  repel  invasions."  Is  it  not  plain  that  the  law  now  un- 
der discussion,  if  passed  under  such  circumstances,  could  by  no 
possibility  be  aught  else  than  a  law  to  "raise  an  army?"  Can 
one  and  the  same  law  be  construed  into  a  "  calling  forth  the  mi- 
litia," if  the  war  be  defensive,  and  a  "  raising  of  armies,"  if  the 
war  be  offensive  ? 

At  some  future  day,  after  our  independence  shall  have  been 
established,  it  is  no  improbable  supposition  that  our  present  enemy 
may  be  tempted  to  abuse  his  naval  power,  by  depredation  on  our 
commerce,  and  that  we  may  be  compelled  to  assert  our  rights  by 
offensive  war.  How  is  it  to  be  carried  on  ?  Of  what  is  the  army 
to  be  composed  ?  If  this  Government  cannot  call  on  its  arms- 
bearing  population  otherwise  than  as  militia,  and  if  the  militia 
can  only  he  called  forth  to  repel  invasion,  we  should  be  utterly 
helpless  to  vindicate  our  honor  or  protect  our  rights.  War  has 
been  well  styled  "  the  terrible  litigation  of  nations."  Have  we 
so  formed  our  Government,  that  in  this  litigation  we  must  never 
be  plaintiff?  Surely  this  cannot  have  been  the  intention  of  the 
franiers  of  our  compact. 

In  no  aspect  in  which  I  can  view  this  law,  can  I  find  just  rea- 
son to  distrust  the  propriety  of  my  action  in  approving  and  sign- 
ing it :  and  the  question  presented  involves  consequences,  both 
immediate  and  remote,  too  momentous  to  permit  me  to  leave  your 
objections  unanswered. 

In  conclusion,  I  take  great  pleasure  in  recognizing  that  the  his- 
tory of  the  past  year  affords  the  amplest  justification  for  your  as- 
sertion, that  if  the  question  had  been,  whether  the  Conscription 


20 

Law  was  necessary  in  order  to  raise  men  in  Georgia,  the  answer 
must  have  been  in  the  negative.  Your  noble  State  has  promptly 
responded  to  every  call  that  it  has  been  my  duty  to  make  on  her; 
and  to  you  personally,  as  her  Executive,  I  acknowledge  my  in- 
debtedness for  the  prompt,  cordial  and  effective  co-operation  you 
have  afforded  me  in  the  effort  to  defend  our  common  country 
against  the  common  enemy. 

I  am,  very  respectfully, 

Your  obedient  servant, 

JEFFERSON  DAVIS. 

His  Excellency  Jos.  E.  Brown, 

Governor  of  Georgia — Milled  gcvillc. 


Hollinger  Corp. 
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